Top of the Pops

And Jon Stewart's commentary on US energy policy (fast forward to 1:19, and be sure to stick around for the excruciating part that starts at 7:00) is far superior to what I saw on cable after the speech.

8 Responses to Top of the Pops

As a lawyer, how can you possibly celebrate the unconstitutional shakedown of BP?

Look, we can ALL agree that BP screwed up bad and is to blame for all of this. But we also have laws that specifically and completely govern this situation. Yes, these laws will be inadequate to cover the giant mess that’s been created. Yes, we’re screwed.

But that does NOT mean that the President can use threats that are at least implied, if not outright (AG’s criminal investigation) to, even gently, force BP to cough up more than the law requires. Nobody truely volunteers to pay $20 billion + to the Government. BP did it, quite arguably, because of the implied and admitted threats of the President. That BP also had a self-interest to keep alive as a company is immaterial. BP has the right to pay, but the President has no right to demand as he is clearly admitting he did.

There is no legal authority to increase BP’s liability above the Congressionally mandated levels. There is no legal authority to create an escrow, or any other kind of account, outside of OPA 90, to be put in place and administered at the President’s behest, by someone he selects, without any Congressional involvement, because the President thinks it’s the right thing to do. This is so obviously illegal that I am utterly astounded that any lawyer, who specializes in Admin law, can think this is even remotely OK. The President has no authority whatsoever to demand that BP do anything of the sort upon his own authority with nothing further.

Again, I don’t argue at all that BP is blameless, or that they shouldn’t pay to the fullest extent of the law. I am saying that WE HAVE a fullest extent of the law, and it is not for the President to decide to augment that to whatever extent he personally determines, according to what HE thinks is right. If people are upset that BP will get off easy under existing law, then it’s up to them to demand Congress fix the law.

If Bush had done something like this, you would excoriate him. Just because we all agree that BP should be liable, doesn’t mean it’s suddently OK to hold them liable illegally.

I would not be at all surprised if this all winds up in court somewhere.

I thought BP agreed to pay its victims, not the government. They’ll undoubtedly demand waivers as part of the deal. So they may be much better off than having to litigate against those claimants. For one thing, they’ll have a mediator instead of a jury.

As a lawyer I support the right of those who choose to exercise their rights; but there are plenty of times I also support the judgment of those who choose not to.

In this case, though, it is far from clear that BP has actually conceded anything it wouldn’t ultimately be obligated to do anyway, either under current law or the law as it will soon be.

(I will say, though, that if the President or anyone else suggested that the odds of criminal prosecution would be changed by this deal, that’s a serious wrong. But AFAIK there is no evidence of this, and indeed today’s NYT suggests that criminal investigations remain ongoing.)

The Presidency is a bully pulpit. The bill of rights is — or should be — a mighty shield. I’m for both.

“If people are upset that BP will get off easy under existing law, then it’s up to them to demand Congress fix the law.”

Could not possibly agree more. A metaphor for everything that was wrong with Bush, and much of what’s wrong with our politics and legal systems currently, IMHumbleO.

For me, the biggest problem with Bush was how he went about getting things accomplished. As difficult as it is to put aside the substantively objectionable, foolish, thoughtless and foresight lacking things he did, if those things were accomplished through the proper legal and administrative procedures and mechanisms, Bush could’ve been a bad president reflecting bad popular opinions and ideals instead of what he really was, essentially a lawless tyrant.

It seems like this country no longer has the patience to wait for anything to be done properly from a procedural perspective. The legislature won’t do something we want or it will take too much time and effort? File a lawsuit and hope that a judge goes beyond his role and creates the needed remedy. We need to change the regulatory scheme and policies? Don’t bother congress with changing the rules and directions it delegated to the agency, just defund the agency and wait until it bleeds out or gives in to the lobbyists. (Thanks a lot Reagan. And deregulation is still not a word as much as Republicans want it to be. Regulating less is a conscious choice to not regulate as much, which is regulation! There is no such thing as deregulation!)

Can anyone imagine another constitutional amendment being passed? It’s good a thing we got the first 10, 13-15 & 19 earlier on because I don’t see how the country would have the stamina to embark on something like that which would take years to accomplish, regardless of the importance.

The laws that govern this came about long before Bush. The main one, OPA90 came about in…wait for it…1990 – so Clinton didn’t bother changing it either. And I don’t remember anyone accusing HIM of being an oil company shill. (virtually all of the law on this was a direct result of the Exxon Valdiz accident)

BP paid because they decided that in the long run, it would not be wroth it as a company to fight the U.S. Government and public opinion. That’s the only reason. Saying no would put them out of business in the U.S. They knew it and Obama knows it. That was the threat, whether it was explicitly stated or not. Obama implies it every time he talks about it.

And as I understand it, the $20B will be paid into a Government account (OK an account managed by an Obama appointee, if you want to pretend that’s independant), not shelled out directly to the victims of this disaster.

Michael: “In this case, though, it is far from clear that BP has actually conceded anything it wouldn’t ultimately be obligated to do anyway, either under current law or the law as it will soon be.”

Again, WHAT!? There are liability caps in place that will govern this. That law is actually pretty clear. That it also will result in people being screwed is also quite clear. But that’s how it is set up.

Are you suggesting a retroactive application of new punitive laws? You are a lawyer, right?

Again, I don’t defent BP for one second – I just think that as a lawyer in a land of laws, we need to work within the system, or FIX it if it’s screwed up. Here, BP can legally get away with what they did for $75M + cleanup costs (and possible wrongful death under maritime law). That’s what all the other spillers have fallen under and that’s the law. Even if a little more can be squeezed out under some additional laws, it’s probably nowhere near $1B, much less $20 B+. The taxpayers are screwed here, and if it upsets you, then lobby to get the law changed. That’s how the system works.

Meanwhile, the spill goes on, and the Federal Government has stopped Jindal from sending out oil skimming vessels he had ready to go. (I mean we wouldn’t want these skimmers to damage the environment would we?)

Are you suggesting a retroactive application of new punitive laws? You are a lawyer, right?

Almost right (liability) and right (I am a lawyer). Retroactive tort law is common and legal. (Retroactive criminal law is unconstitutional, but not private liability to other people.) We do it all the time. Think “black lung disease compensation” if you need an example. I’m not sure what the word “punitive” is doing there: this retroactive liability is compensatory not punitive, and inures to victims not the public fisc. And it’s legal. Note that if Congress does it, it is legal even if it impairs a contract, as that ban only applies to states.

If that offends your libertarian soul, imagine Congress were to lift the liability cap tomorrow: compensation for losses ongoing from that date would still, I’d bet, vastly exceed $20 bn. And they know it.

Well, OPA 90 (and various other applicable laws here) is a mixture of both criminal and civil (under a strict liability scheme).

Since it’s a statute, and not common law, obviously it would require congressional action to change it. Most typically, this would not be applied retroactively – as this is a disfavored approach, and it must be specific in application – but it is not unheard of. The changes, if any, of criminal sanctions, would not be retroactive, obviously.

While I think most people would like to see new law applied retroactively here to hold BP accountable, I’m not sure it’s such a good idea to start retroactively applying laws just because it seems right. Especially when some of the potential costs were not directly created by the offender. (i.e. reports that Obama is making BP pay toward unemployed drillers who are unemployed due to the moratorium on drilling – assuming that’s even true.) Such retroactive use of laws of this type, tend to set a bad precedent, even if they seem to be a good idea at the time. The rule of unintended consequences applies!

Indulge me: why, in principle, is it a bad thing to establish the rule that firms causing giant environmental disasters should be responsible for diverse forms of the economic consequences, even arguably unforeseeable ones? Is it because the consequences here result most directly from (reasonable) government action? I would not like it if the government action were unreasonable, but this is quite tame under the circumstances.

It does seem to me that the real cause here is the spill not the government: could the government reasonably allow drilling to go forward until we know there’s little risk of this terrible danger? If not, why blame the government for something it is in effect forced to do?